Amicus Curiae Brief — David Asa Villarreal, Petitioner v. Texas

No. 24-557

IN THE

Supreme Court of the United States

__________

DAVID ASA VILLARREAL,

Petitioner,

v.

TEXAS,

Respondent.

__________

On Writ of Certiorari to the

Court of Criminal Appeals of Texas

__________

BRIEF OF LEGAL ETHICS SCHOLARS

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

__________

MATTHEW S. HELLMAN

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

DAVID A. STRAUSS

SARAH M. KONSKY

Counsel of Record

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

(773) 834-3190

konsky@uchicago.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........................................ii

INTEREST OF AMICI CURIAE .................................. 1

SUMMARY OF ARGUMENT ......................................... 3

ARGUMENT ....................................................................... 6

I. Banning Discussion of Testimony During

an Overnight Recess Jeopardizes the

Attorney’s Ability to Comply with Core

Professional Responsibilities. ...................................... 6

II. The Order Undermines the AttorneyClient

Privilege

and

Duty

of

Confidentiality by Chilling Full and Frank

Communication. ........................................................... 14

III. Concerns Underpinning the Trial Court’s

Order Could Be Addressed by Other Means

that Do Not Encroach on a Lawyer’s

Professional Responsibility Obligations. ................. 18

CONCLUSION ................................................................. 21

ii

TABLE OF AUTHORITIES

CASES

Beckham v. Commonwealth, 248 S.W.3d

547 (Ky. 2008) .......................................................... 19

Geders v. United States, 425 U.S. 80

(1976) ........................................... 3, 5, 6, 12, 18, 19, 20

Mudd v. United States, 798 F.2d 1509 (D.C.

Cir. 1986) .............................................................. 8, 11

Perry v. Leeke, 488 U.S. 272 (1989) ............... 12, 13, 17

Swidler & Berlin v. United States, 524 U.S.

399 (1998) ....................................................... 14-15, 16

United States v. Cobb, 905 F.2d 784 (4th Cir.

1990) ............................................................................ 9

United States v. Sandoval-Mendoza, 472

F.3d 645 (9th Cir. 2006) .......................................... 13

United States v. Santos, 201 F.3d 953 (7th

Cir. 2000) ............................................................ 11, 20

United States v. Zolin, 491 U.S. 554

(1989) ......................................................................... 15

Upjohn Co. v. United States, 449 U.S. 383

(1981) ......................................................................... 14

OTHER AUTHORITIES

61 Am. Jur. Trials 269, §§ 60–147.............................. 11

ABA, Criminal Justice Standards for the

Defense Function (4th ed 2017) ............................... 7

iii

ABA STANDING COMMITTEE ON ETHICS

AND PROFESSIONAL RESPONSIBILITY,

Formal Opinion 508: The Ethics of

Witness Preparation (Aug. 5, 2023) ............... 10, 18

Roberta K. Flowers, Witness Preparation:

Regulation of the Profession’s ‘Dirty

Little’ Secret, 38 HASTINGS CONST. L.Q.

1007 (2011) ................................................................ 10

Adam Liptak, Crossing a Fine Line on

Witness Coaching, N.Y. TIMES (Mar. 16,

2006) .......................................................................... 10

Model Rules of Professional Conduct (Am.

Bar Ass’n 2025)

Preamble .................................................................... 7

Model Rule 1.1 cmt. [5] ........................................... 10

Model Rule 1.2 ......................................................... 12

Model Rule 1.3 ........................................................... 7

Model Rule 1.3 cmt. [1] ............................................. 8

Model Rule 1.4(a)(4) ................................................ 12

Model Rule 1.4(b) .................................................... 12

Model Rule 1.4 cmt. [1] ...................................... 11-12

Model Rule 1.6(a) .................................................... 16

Model Rule 1.6 cmt. [15] ......................................... 17

Model Rule 2.1 ......................................................... 12

Model Rule 3.3 ........................................................... 9

Model Rule 3.3(a)(3) ................................................ 13

iv

Model Rule 3.3 cmt. [10] ......................................... 14

Restatement (Third) of the Law Governing

Lawyers § 68 cmt. c (2000) ..................................... 15

Restatement (Third) of the Law Governing

Lawyers § 68 cmt. d (2000) .................................... 17

Restatement (Third) of the Law Governing

Lawyers § 68 cmt. g (2000) .................................... 17

Restatement (Third) of the Law Governing

Lawyers § 116 cmt. b (2000) .................................. 11

INTEREST OF AMICI CURIAE1

Amici curiae are leading legal ethics scholars with

expertise regarding the rules, precedents, and other

authorities regarding the professional responsibility and

legal ethics obligations of lawyers. While this case

involves protection of crucial Sixth Amendment rights

of criminal defendants, it also implicates the professional

responsibility and legal ethics obligations of attorneys

representing clients at trial.

Amici have a professional interest in ensuring that

the Court is fully informed of the important professional

responsibility and legal ethics issues in this case.

Specifically, amici submit this brief to explain that the

trial court’s order in this case creates significant and

serious problems for attorneys attempting to satisfy

their professional responsibility and legal ethics

obligations under relevant authorities.

The amici2 are:

Professor Benjamin Barton, Helen and Charles

Lockett Distinguished Professor of Law, The University

of Tennessee College of Law

1

Pursuant to this Court’s Rule 37.6, counsel for amici curiae certify

that this brief was not authored in whole or part by counsel for any

party and that no person or entity other than amici curiae or their

counsel made a monetary contribution to preparation or submission

of this brief.

2

All amici join in their personal capacities only. The views

expressed herein are not authorized by, nor should be construed as

reflecting on, amici’s respective institutions, which did not provide

any resources used in the preparation of this brief.

2

Professor Susan Carle, Professor of Law, American

University Washington College of Law

Professor Scott L. Cummings, Robert Henigson

Professor of Legal Ethics and Faculty Director of the

Program on Legal Ethics and the Profession, UCLA

School of Law

Professor Bruce Green, Louis Stein Chair of Law,

Director of the Louis Stein Center for Law and Ethics,

Fordham University School of Law

Professor Stephen Gillers, Elihu Root Professor of

Law Emeritus, New York University School of Law

Professor Renee Knake Jefferson, Doherty Chair in

Legal Ethics & Professor of Law, University of Houston

Law Center

Professor Leslie Levin, Hugh Macgill Professor of

Law, University of Connecticut School of Law

Professor David J. Luban, Distinguished University

Professor, Professor of Law and Philosophy,

Georgetown University Law Center

Professor Russell G. Pearce, Edward & Marilyn

Bellet Chair in Legal Ethics, Morality, and Religion,

Fordham University School of Law

Professor Abbe Smith, Scott K. Ginsburg Professor

of Law, Georgetown University Law Center

Professor Ann Southworth, Professor of Law,

University of California, Irvine, School of Law

Professor Eli Wald, Charles W. Delaney Jr.

Professor of Law, University of Denver Sturm College

of Law

3

SUMMARY OF ARGUMENT

As Mr. Villarreal’s opening brief correctly explains,

the trial court’s order prohibiting Mr. Villarreal and his

counsel from discussing his testimony during an

overnight recess in the trial violated Mr. Villarreal’s

Sixth Amendment right to counsel. See Pet’r Br. at 13–

40. The trial court’s order also is problematic for a

distinct, but related, reason: it interferes with and chills

counsel’s ability to fulfill their professional responsibility

and legal ethics obligations.

1. Criminal defense lawyers have a multitude of

professional responsibility and ethical duties to their

clients during a criminal trial. These duties span from

advising clients about developments in the case, to

consulting with clients about strategy issues, to

addressing false statements in the clients’ testimony.

These professional responsibility and ethical duties are

set forth in a multitude of rules, precedents, and other

authorities.

2. As this Court has recognized, an overnight

recess during a criminal trial is a particularly crucial

juncture for lawyers’ duties to their clients. “[Overnight]

recesses are often times of intensive work, with tactical

decisions to be made and strategies to be reviewed . . . .

At the very least, the overnight recess during trial gives

the defendant a chance to discuss with counsel the

significance of the day’s events.” Geders v. United

States, 425 U.S. 80, 88 (1976).

3. A trial court’s order prohibiting lawyers and

their client from discussing the client’s testimony during

an overnight recess raises significant legal ethics and

4

professional responsibility problems. Such an order both

impedes and chills required communications between

lawyers and their clients, including time-sensitive

communications pertinent to case development and

strategy. Moreover, for the trial court’s order to have

any teeth, courts would need to examine confidential and

privileged conversations between lawyers and their

clients. As such, it also threatens the confidentiality of

privileged conversations between lawyers and their

clients.

There is not a clear dividing line between attorneyclient conversations about ongoing testimony and

attorney-client conversations about other trial

preparation. Rather, in practice, discussions about trial

strategy and evidentiary developments often bleed into

conversations about a client’s testimony. As a result, an

order like the one in this case could deter lawyers from

having important conversations that are ethically

permitted or even required—from conversations about

the effect of the testimony on trial strategy, to

conversations about new information raised in the

testimony. A rule that fails to account for the

intertwined nature of testimony and other subjects

therefore risks chilling important communication,

leaving lawyers in a difficult position as they attempt to

comply with their professional obligations in the highpressure setting of an ongoing trial.

4. The trial court’s categorical order in this case is

neither necessary nor appropriate to meet its stated

objectives of preventing coaching or improper influence

on testimony. As this Court explained in Geders, an

attorney already is required to “observe the ethical

5

limits on guiding witnesses,” 425 U.S. at 90, and “must

respect the important ethical distinction between

discussing testimony and seeking improperly to

influence it,” id. at 90 n.3.

And as the facts of this case illustrate, specific

concerns about coaching or improper influence on

testimony can be addressed by far less restrictive means

that do not raise the same legal ethics problems. The

defendant in this case began his direct testimony just

before noon, but about an hour later (while the direct

testimony was still ongoing), the trial court recessed the

case until the next day. See Pet. App. 5a. The trial court

could have, for example, scheduled the defendant’s

testimony to proceed without interruption, or reminded

counsel of their professional responsibility and legal

ethics obligations during breaks in testimony. And the

prosecution remained free to challenge the defendant’s

testimony on cross-examination.

The overnight recess is a structural feature of an

adversarial trial—not a luxury. When courts interfere

with attorney-client communication during this period,

they compromise the integrity of the defense function at

precisely the moment when it is most needed.

6

ARGUMENT

I. Banning Discussion of Testimony During an

Overnight Recess Jeopardizes the Attorney’s

Ability to Comply with Core Professional

Responsibilities.

Overnight breaks in a criminal trial—like the

approximately 24-hour overnight break in this case, see

Pet. App. 5a, 8a—serve as critical windows during which

defense counsel must carry out significant professional

duties to their client. The Supreme Court recognized the

unique importance of such recesses in Geders:

It is common practice during [overnight] recesses

for an accused and counsel to discuss the events

of the day’s trial. Such recesses are often times of

intensive work, with tactical decisions to be made

and strategies to be reviewed. The lawyer may

need to obtain from his client information made

relevant by the day’s testimony, or he may need

to pursue inquiry along lines not fully explored

earlier. At the very least, the overnight recess

during trial gives the defendant a chance to

discuss with counsel the significance of the day’s

events.

425 U.S. at 88. Moreover, such exchanges during trial

are particularly critical because defendants are

ordinarily “ill-equipped to understand and deal with the

trial process without a lawyer’s guidance.” Id.

Beyond the concerns raised by any restriction on

attorney-client communication during an overnight

recess, a specific ban on discussing testimony strikes at

the core of a defense lawyer’s professional obligations.

7

Of course, as discussed further below, lawyers have an

ethical duty not to “coach” a witness, and that duty

applies both before and during the witness’s testimony.

See Section III infra. But at the same time, lawyers have

critical responsibilities that require or may require

discussion of testimony. Conversations about testimony

are intertwined with lawyers’ responsibilities to advise

their client, adapt trial strategy, and correct errors.

Forcing lawyers to avoid discussion pertaining to

testimony prevents and chills them from fulfilling key

duties under the applicable rules of legal ethics and

professional responsibility, as exemplified by the

American Bar Association Model Rules of Professional

Conduct (Am. Bar Ass’n 2025) (“Model Rules”).

1. Duty of Zealous Advocacy. First and foremost, the

kind of ban at issue here impedes a lawyer’s duty to act

as a zealous advocate. As the Preamble to the Model

Rules makes clear, a lawyer is expected to “zealously

assert[] the client’s position” and “protect and pursue

[their] legitimate interests.” Model Rules, Preamble

¶¶ 2, 9. This responsibility is codified in Rule 1.3, which

requires that lawyers “act with reasonable diligence and

promptness in representing a client.” Model Rule 1.3

(emphasis added); see also ABA, Criminal Justice

Standards for the Defense Function 4-1.3(d), (f) (4th ed

2017) (ongoing duties of defense counsel to

“communicate and keep the client informed and advised

of significant developments and potential options and

outcomes” and “continually evaluate the impact that

each decision or action may have at later stages,

including trial, sentencing, and post-conviction review”).

And the comments to Model Rule 1.3 further reiterate

8

that a lawyer must act “with zeal in advocacy upon the

client’s behalf.” Model Rule 1.3 cmt. [1].

As Rule 1.3 recognizes, trial advocacy is interactive

and reactive. Lawyers rely on overnight recesses to

assess the events of the day and determine how best to

proceed. These assessments cannot be made in a

vacuum. They require input from the client and

communication that will inevitably touch on testimony.

Discussions about case facts and strategy can often

overlap with matters raised in testimony, making it

difficult to draw clean, real-time lines between the two.

As Judge Yeary’s concurrence below aptly highlights,

“[t]he line between defense counsel conferring with his

client about the content and direction of his ongoing

testimony and conferring about the derivative effects of

that ongoing testimony is a nebulous one at best.” Pet.

App. at 19a (alteration and internal quotation marks

omitted); see also Mudd v. United States, 798 F.2d 1509,

1512 (D.C. Cir. 1986) (Mikva, J.) (“Consultation between

lawyers and clients cannot be neatly divided into

discussions about ‘testimony’ and those about ‘other’

matters.”). Thus, “an order such as the one in this case

can have a chilling effect on cautious attorneys, who

might avoid giving advice on non-testimonial matters for

fear of violating the court’s directive.” Mudd, 798 F.2d

at 1512.

Suppose the defendant makes a statement on the

stand that diverges from prior accounts or provides

information that is new to his counsel. To be an effective

advocate, counsel must seek clarification and determine

whether additional facts need to be developed or

explained the next day. Without that opportunity,

9

counsel cannot respond to shifting terrain to best

represent his client. Moreover, facts raised in testimony

can prompt further investigation or adjustments to the

defense theory. This kind of preparation is part and

parcel of the lawyer’s role in preparing the case at trial,

as well as preparing his witnesses to give accurate

testimony. In addition, as discussed further below, if the

defendant has presented testimony that counsel knows

or suspects to be untrue, counsel may be obligated to

discuss that testimony with his client. See Model Rule

3.3. When a lawyer is prohibited from discussing these

critical matters for a full 24 hours while the trial is

ongoing, a lawyer cannot fulfill the promise of diligent

and prompt representation to the client.

Thus, as the Fourth Circuit has explained:

To remove from [the defendant] the ability to

discuss with his attorney any aspect of his

ongoing testimony effectively eviscerate[s] his

ability to discuss and plan trial strategy. To hold

otherwise would defy reason. How can competent

counsel not take into consideration the testimony

of his client in deciding how to try the rest of the

case?

United States v. Cobb, 905 F.2d 784, 792 (4th Cir. 1990)

(“We have no difficulty in concluding that the trial

court’s order, although limited to discussions of [the

defendant’s] ongoing testimony, effectively denied him

access to counsel.”).

2. Duty of Competent Representation. The ethical

conundrum created by the trial court’s order also

implicates a lawyer’s core duty of competent

10

representation under Model Rule 1.1. See also Model

Rule 1.1 cmt. [5] (discussing duties of thoroughness and

preparation).

Testimony is the centerpiece of many defense

strategies. Per the American Bar Association,

“[p]reparing a witness or a client to testify . . .—or in

some situations providing a client or witness with

midstream guidance during the testimonial process—is

such a familiar component of a lawyer’s trial-advocacy

repertoire that it needs little introduction or

explanation.” ABA STANDING COMMITTEE ON ETHICS

AND PROFESSIONAL RESPONSIBILITY, Formal Opinion

508: The Ethics of Witness Preparation 1–2 (Aug. 5,

2023) (“Formal Opinion 508”) (emphasis added);

Roberta K. Flowers, Witness Preparation: Regulation

of the Profession’s ‘Dirty Little’ Secret, 38 HASTINGS

CONST. L.Q. 1007, 1007–08 (2011) (“Witness preparation

is considered by most criminal attorneys—prosecutors

and criminal defense attorneys alike—to be an essential

part of trial advocacy.” (footnotes omitted)). As a result,

“a lawyer’s failure to prepare and guide a witness would

in many situations violate the ethical duties of

competence and diligence.” Formal Opinion 508 at 11;

see also Adam Liptak, Crossing a Fine Line on Witness

Coaching, N.Y. TIMES (Mar. 16, 2006) (“[L]awyers often

spend hours preparing witnesses to testify, a practice

that is not only accepted but also generally considered

necessary. Lawyers have been punished for incompetent

representation for failing to interview and prepare

witnesses.”).

Discussions about testimony thus form the

cornerstone of a lawyer’s witness preparation

11

responsibilities. American Jurisprudence’s encyclopedia

on witness preparation, for example, catalogs nearly 100

granular issues a lawyer is ethically required or

encouraged to discuss with witnesses regarding trial

testimony. See Witness Preparation, 61 Am. Jur. Trials

269, §§ 60–147; see also Restatement (Third) of the Law

Governing Lawyers § 116 cmt. b (2000). While attorneys

always are obligated to draw the line between

impermissible coaching and required preparation,

attorneys may encounter situations in which applicable

rules require them to revisit required preparation over

a long recess—for example, to remind a client of his or

her duty to tell the truth while testifying, or to warn to

the client of questions that could raise self-incrimination

concerns or lead to the mention of excluded evidence.

See, e.g., United States v. Santos, 201 F.3d 953, 965 (7th

Cir. 2000) (Posner, J.); Mudd, 798 F.2d at 1512.

When courts prohibit attorneys from discussing

testimony with their clients for a full 24-hour period,

they prevent them from fulfilling a multitude of

responsibilities essential to competent and diligent

representation. Such a prohibition also creates a

nonsensical result: an attorney’s ethical preparation of

his client can occur in the days or hours before the start

of direct testimony, but not in the days or hours before

the resumption of direct testimony. This transforms

defense counsel from advocate to bystander.

3. Duty to Provide Information and Consult. By

cutting off communication about testimony, the trial

court’s order also interferes with Rule 1.4’s mandate

that lawyers keep clients reasonably informed and

consult with them about significant decisions. Model

12

Rule 1.4 cmt. [1] (“Reasonable communication between

the lawyer and the client is necessary for the client

effectively to participate in the representation.”). Rule

1.4 states, for example, that a lawyer “shall” “promptly

comply with reasonable requests for information” and

“explain a matter to the extent reasonably necessary to

permit the client to make informed decisions regarding

the representation.” Model Rule 1.4(a)(4), (b). Rule 1.2

further explains that a lawyer is obligated to “consult

with the client” regarding the client’s critical decisions

in a criminal case—including the objectives of the

representation and whether to enter a guilty plea. Model

Rule 1.2; see also Model Rule 2.1 (“In representing a

client, a lawyer shall exercise independent professional

judgment and render candid advice.”).

A lawyer may be obligated to use an overnight recess

to discuss with the client new concerns and tactical

considerations brought about by the day’s proceedings;

imposing a testimony-specific gag order deters this form

of “reasonable communication” required under Rules 1.2

and 1.4. Substantive exchanges between lawyer and

client may be necessary so that defense counsel can, for

example, “obtain from his client information made

relevant by the day’s testimony” and “pursue inquiry

along lines not fully explored earlier.” Geders, 425 U.S.

at 88.

As this Court further explained in Perry v. Leeke,

“normal consultation” between an attorney and client

during an overnight recess includes “matters that the

defendant does have a constitutional right to discuss

with his lawyer, such as the availability of other

witnesses, trial tactics, or even the possibility of

13

negotiating a plea bargain.” 488 U.S. 272, 284 (1989). The

Court acknowledged “such discussions will inevitably

include some consideration of the defendant’s ongoing

testimony.” Id. Indeed, it is difficult to see how a diligent

lawyer could competently carry out his trial obligations

without any discussion of testimony. See United States

v. Sandoval-Mendoza, 472 F.3d 645, 651 (9th Cir. 2006)

(“Indeed, it is hard to see how a defendant’s lawyer could

ask him for the name of a witness who could corroborate

his testimony or advise him to change his plea after

disastrous testimony, subjects Perry expressly says a

defendant has a right to discuss with his lawyer during

an overnight recess, without discussing the testimony

itself.”); see also Mudd, 798 F.2d at 1515 (Scalia, J.,

concurring) (“I agree with the majority that the District

Court’s order prohibiting defendant from discussing his

testimony with his attorney during a weekend recess

was not significantly less invasive of sixth amendment

rights than the order prohibiting all contact between a

defendant and his attorney during an overnight recess

in Geders v. United States.” (internal citation omitted)).

4. Duty of Candor. The extended ban on conferring

about testimony also raises concerns about a lawyer’s

duty of candor to the tribunal. Per Rule 3.3, if a lawyer’s

client “has offered material evidence and the lawyer

comes to know of its falsity, the lawyer shall take

reasonable remedial measures . . . .” Model Rule 3.3(a)(3).

In such cases, the Model Rules note that “the advocate’s

proper course is to remonstrate with the client

confidentially, advise the client of the lawyer’s duty of

candor to the tribunal and seek the client’s cooperation

with respect to the withdrawal or correction of the false

14

statements or evidence.” Model Rule 3.3 cmt. [10]

(emphasis added). Only when these remedial efforts fail

may a lawyer “reveal information that otherwise would

be protected” under the duty of confidentiality. Id.

The rules thus contemplate that a lawyer’s first

responsibility when faced with potentially false

testimony is to discuss that testimony with the client.

While a brief recess may not provide sufficient time to

assess falsity and persuade a client to correct the record,

a 24-hour recess certainly can. Prohibiting testimonyrelated communication during an extended break thus

impairs the lawyer’s ability to take reasonable remedial

measures, placing her in conflict with her duties to the

court under Rule 3.3.

II. The Order Undermines the Attorney-Client

Privilege and Duty of Confidentiality by Chilling

Full and Frank Communication.

Prohibiting defense counsel from discussing

testimony with his client during an overnight recess also

undermines the attorney-client privilege in both

principle and practice. As the Supreme Court

emphasized in Upjohn Co. v. United States, the purpose

of the privilege is to “encourage full and frank

communication between attorneys and their clients.” 449

U.S. 383, 389 (1981). There, the Court warned that “an

uncertain privilege, or one which purports to be certain

but results in widely varying applications by the courts,

is little better than no privilege at all.” Id. at 393. As a

prophylactic rule, the attorney-client privilege thus

accepts the risk of error and injustice in individual cases

in favor of the values that the privilege protects. See

Swidler & Berlin v. United States, 524 U.S. 399, 403–11

15

(1998) (holding that the attorney-client privilege

survives a client’s death, even if another defendant is

deprived of exculpatory evidence).

The privilege protects all communications between

privileged persons, made in confidence, for the purpose

of seeking or rendering legal advice. Restatement

(Third) of the Law Governing Lawyers § 68 cmt. c (2000).

This will almost invariably reach conversations between

an attorney and his client during a 24-hour recess.

To start, a trial court’s attempt to enforce the order

in this case could implicate the confidentiality of

privileged communications. For example, a trial court’s

questions to an attorney about his overnight

communications with his client are likely to implicate

communications that are privileged and confidential,

especially given that discussions of trial strategy cannot

be neatly cordoned off from statements that might in

some way implicate the defendant’s testimony. This

could raise a multitude of questions about the extent to

which, and the grounds upon which, privileged and

confidential attorney-client communications could be

subject to disclosure. See, e.g., United States v. Zolin,

491 U.S. 554, 574–75 (1989) (in-camera review to assess

whether allegedly privileged communications fell within

federal crime-fraud exception). But in any event, for the

trial court’s order in this case to have any teeth, the trial

court would need to engage in the very scrutiny of client

communications that the privilege is meant to ward off.

While Texas argues that “the trial court [in this case]

assured counsel that petitioner’s ‘attorney-client

privilege is safe,’” Brief in Opp. at 27, citing Pet. App. 8a,

16

that “assurance” is not easily reconciled with the trial

court’s order.

Even if the trial court does not ultimately compel

disclosure of privileged communications, the mere risk

that such conversations may be scrutinized in court

chills open communication and compromises the

attorney’s ability to provide effective assistance. By

opening the door to possible exposure of these

communications in court, client and counsel alike are left

uncertain about what they can safely share. This kind of

self-censorship is precisely what the attorney-client

privilege seeks to prevent. As this Court has explained,

rules that create uncertainty about the privilege’s scope

undermine its function even when the client cannot show

prejudice. Swindler, 524 U.S. at 406–10. The harm stems

from the mere existence of a rule that places attorneys

in conflict with their ethical duties and causes clients to

second-guess what information they choose to disclose.

And defense counsel thus faces an impossible choice

between complying with court demands and upholding

ethical obligations to his client.

The Model Rules of Professional Conduct have

codified these same principles. Rule 1.6 states that “[a]

lawyer shall not reveal information relating to the

representation of a client unless the client gives

informed consent . . . .” Model Rule 1.6(a). While

disclosure of confidential information may be permitted

pursuant to a court order, the Rules make clear that this

does not absolve the lawyer of the duty to resist

disclosure. To the contrary, the comments to Rule 1.6

instruct lawyers to still “assert on behalf of the client all

nonfrivolous claims that the order is not authorized by

17

other law or the information is protected against

disclosure by the attorney-client privilege.” Model Rule

1.6 cmt. [15]. By urging lawyers to defend confidentiality

even when exceptions apply, the Model Rules

underscore that protecting client confidences is an

unshakeable ethical mandate.

Texas also claims that Perry v. Leeke, 488 U.S. 272

(1989), forecloses any privilege concerns, arguing that

there is “no logical reason why the attorney-client

privilege would be safe in [a brief recess] but imperiled

during longer ones.” Brief in Opp. at 27–28. But courts

could enforce Perry’s conferral ban without prying into

the contents of any conversation between attorney and

client, because the ban in that case was a complete

restriction on all communications. Because the attorneyclient privilege only protects the substance of a

discussion, the privilege would not have shielded the

underlying fact of whether a discussion took place. See,

e.g., Restatement (Third) of the Law Governing Lawyers

§ 69 cmts. d, g (2000). Here, in contrast, enforcing a

testimony-specific restriction requires the court to

determine whether the attorney and client discussed a

particular subject matter, necessarily revealing the

contents of their communications.

In short, the sanctity of the attorney-client

relationship depends on a zone of trust where clients can

speak freely. The trial court’s order in this case erodes

that trust and, at a minimum, chills protected

communications.

18

III. Concerns Underpinning the Trial Court’s Order

Could Be Addressed by Other Means that Do Not

Encroach

on

a

Lawyer’s

Professional

Responsibility Obligations.

Texas asserts that the trial court’s order in this case

is necessary to “protect the truth-seeking function.” See,

e.g., Brief in Opp. at i, 22. The applicable rules of

professional responsibility underscore that this is

wrong.

1. The rules of professional responsibility already

protect the truth-seeking function by prohibiting

witness coaching, whether it occurs before or during a

witness’s testimony. “Counseling a witness to give false

testimony or assisting a witness in offering false

testimony, for example, is a violation of at least Model

Rule 3.4(b).” Formal Opinion 508 at 1. “Such conduct

might also constitute assisting the client to engage in

conduct that the lawyer knows is criminal, i.e., perjury,

in violation of Model Rule 1.2(d), as well as offering false

evidence in violation of Model Rule 3.3(a)(3).” Id. at 4

n.16.

Indeed, this Court in Geders recognized that rules

governing attorney professional responsibility already

address attorneys’ improper attempts to influence

witnesses’ testimony. Geders, 425 U.S. at 90 n.3. The

Court explained that violating these rules would

constitute “a most serious breach of the attorney’s duty

to the court.” Id. And as Justice Marshall further

explained in his concurring opinion in Geders, “[t]he

Court holds that the fear of unethical conduct is not a

sufficient ground for an order barring overnight

communication between a defendant and his attorney,”

19

in part, because our adversary system presumes that

“an attorney will observe his responsibilities to the legal

system, as well as to his client.” Id. at 93 (Marshall, J.,

concurring) (“I find it difficult to conceive of any

circumstances that would justify a court’s limiting the

attorney’s opportunity to serve his client because of fear

that he may disserve the system by violating accepted

ethical

standards.”);

see

also

Beckham

v.

Commonwealth, 248 S.W.3d 547, 555 (Ky. 2008) (Noble,

J., concurring in part and dissenting in part) (“[T]o

presume by default that an attorney would first choose

this prohibited conduct [of coaching a client to present

false testimony] demonstrates a lack of faith in counsel

that is unwarranted, given the grave consequences that

follow such conduct, including possibly being

disbarred.”).

2. Moreover, this Court explained in Geders that

“[t]here are other ways to deal with the problem of

possible improper influence on testimony or ‘coaching’ of

a witness short of putting a barrier between client and

counsel for so long a period as 17 hours.” 425 U.S. at 89.

Those less restrictive alternatives underscore that the

burdens on counsels’ ethical and professional duties

were unnecessary here.

First, as this Court recognized in Geders, the trial

judge retains the discretion to direct the witness

testimony to continue without interruption if the judge

is concerned about the defense counsel’s adherence to

ethical obligations. Id. at 90–91 (“In addition the trial

judge, if he doubts that defense counsel will observe the

ethical limits on guiding witnesses, may direct that the

examination of the witness continue without

20

interruption until completed.” (footnote omitted)). In

this case, for example, the trial court allowed the

defendant’s direct testimony to start at around noon—

but then just around an hour later, called a recess until

the next day. See Pet. App. 5a. The trial court could

instead have postponed the start of the defendant’s

testimony until the next day, so that it was not

interrupted by an overnight recess.

Second, as this Court also explained in Geders, the

prosecutor may wield cross-examination as one of its

“weapons to cope with ‘coached’ witnesses.” 425 U.S. at

90–91. Again, the overnight recess in this case occurred

just an hour or so into defendant’s direct testimony—and

as a result, the state had its full cross examination still

available to it.

Third, a trial court in this situation could remind

counsel of their ethical obligations—including their

ethical obligations not to engage in prohibited

coaching—during the recess. See, e.g., Santos, 201 F.3d

at 965. This serves to reinforce that the same witness

coaching that was impermissible before the direct

examination would remain impermissible on an

overnight recess during the direct examination.

These alternatives demonstrate that the trial court’s

categorical attorney-client communication bar was an

unnecessarily blunt way of dealing with a situation that,

if it presented a problem at all, could have been

addressed in far less costly ways.

21

CONCLUSION

For the foregoing reasons, the Court should reverse

the judgment below.

June 10, 2025

Respectfully submitted

MATTHEW S. HELLMAN

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

DAVID A. STRAUSS

SARAH M. KONSKY

Counsel of Record

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

(773) 834-3190

konsky@uchicago.edu